State v. Brown, 41380.

• Decision Date: 22 November 1932
• Docket Number: No. 41380.,41380.
• Citation: 216 Iowa 538,245 N.W. 306
• Parties: STATE v. BROWN.
• Court: Iowa Supreme Court

216 Iowa 538

245 N.W. 306

STATE

v.BROWN.

No. 41380.

Supreme Court of Iowa.

Nov. 22, 1932.

Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.

The defendant was convicted of the crime of assault with intent to commit rape, and appeals from a judgment sentencing him to the Men's Reformatory at Anamosa for an indeterminate period of twenty years.

Affirmed.J. C. Robinson, J. E. Williams, and Senneff, Witwer & Senneff, all of Mason City, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Roe Thompson, Co. Atty., and Charles W. Barlow, Asst. Co. Atty., both of Mason City, for the State.

STEVENS, C. J.

The offense of rape, charged in the indictment, was committed on the evening of June 7, 1931. The assault in some of its aspects was extremely brutal, and we shall recite no more of the details than is essential to the discussion of the propositions relied upon by the defendant for reversal.

The first and major complaint of the defendant is that the court did not submit to the jury the alleged included offense of assault with intent to commit great bodily injury. The court submitted rape, assault with intent to commit rape, assault and battery, and simple assault. Instead of requesting the court to submit assault with intent to do great bodily injury, counsel for defendant requested the court to instruct the jury that the acts which it is now contended constituted this offense amounted to no more than assault and battery or simple assault. The instruction was refused because not requested at the conclusion of the evidence, but the court did, in fact, instruct directly upon this point and in almost the exact language requested by the defendant.

It is the contention of the defendant that he is not bound by the requested instruction, for the reason that the court was not required to give it, even if correct, as the request therefor was not timely. On the other hand, it is the contention of the state that the defendant may not now complain of the instruction given. The exception to the instruction of the court now urged upon us was preserved in a motion for a new trial. The question presented has perhaps never been specifically passed upon in this state, and we shall therefore dispose of it on the merits.

It is provided by section 13919, Code 1931, that, “upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment,” and by section 13920: “In all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment.”

This court has in many cases referred to the offenses necessarily included in a charge of rape as assault with intent to commit rape, assault and battery, and simple assault. State v. McDonough, 104 Iowa, 6, 73 N. W. 357;State v. Novak, 151 Iowa, 536, 132 N. W. 26;State v. Hoaglin, 207 Iowa, 744, 223 N. W. 548, 552, and in many other cases. In an endeavorto clarify and harmonize our decisions, the court in State v. Hoaglin, supra, said: “Much of the confusion in our previous cases has arisen from a failure to distinguish between the abstract question of what is an included offense in the charge of rape and the question of when included offenses should, under the evidence in the case, be submitted. When an indictment or county attorney's information charges a defendant with the crime of rape (statutory or otherwise), it also charges him with the included offenses, to wit: Assault with intent to commit rape, assault and battery, and simple assault. As to whether or not the court should submit any one or more of these included offenses depends wholly upon the evidence.”

[1] The only offenses required by section 13920 to be submitted are such as are necessarily included in the major charge. The rule that the included offenses necessary to be submitted by the court to the jury depends wholly upon the evidence, although variously stated, has existed in this state since an early day. State v. Vinsant, 49 Iowa, 241;State v. Mitchell, 68 Iowa, 116, 26 N. W. 44;State v. Hutchinson, 95 Iowa, 566, 64 N. W. 610;State v. Steffens, 116 Iowa, 227, 89 N. W. 974;State v. King, 117 Iowa, 484, 91 N. W. 768;State v. Trusty, 118 Iowa, 498, 92 N. W. 677;State v. Barkley, 129 Iowa, 484, 105 N. W. 506;State v. Blackburn, 136 Iowa, 743, 114 N. W. 531;State v. Jones, 145 Iowa, 176, 123 N. W. 960;State v. Perkins, 171 Iowa, 1, 153 N. W. 146;State v. Brooks, 181 Iowa, 874, 165 N. W. 194;State v. Ellington, 200 Iowa, 636, 204 N. W. 307;State v. Speck, 202 Iowa, 732, 210 N. W. 913.

The particular act committed by the defendant upon which the exception to the instruction is predicated was the insertion by the defendant into the vagina of the prosecutrix with great force and violence of an iron instrument, referred to in the evidence as an automobile jack handle. The result was the infliction of a wound in the top of the prosecutrix' vagina back of the mouth of the womb in the lower abdominal cavity about two or two and one-half inches in length. We have found no case in this state in which the offense of assault with intent to do great bodily injury has been submitted as one necessarily included in a charge of rape. The subject has, however, been referred to in several of our prior decisions. State v. Reilly, 104 Iowa, 13, 73 N. W. 356;State v. Egbert, 125 Iowa, 443, 101 N. W. 191;State v. Sheets, 127 Iowa, 73, 102 N. W. 415;State v. Novak, 151 Iowa, 536, 132 N. W. 26, 27;State v. Harrison, 167 Iowa, 334, 149 N. W. 452;State v. Woodworth, 168 Iowa, 263, 150 N. W. 25;State v. Huckelberry, 195 Iowa, 14, 188 N. W. 587.

In several of the cited cases, the subject was dismissed without discussion and with the mere statement that the record contained no evidence to sustain such an offense. The court in State v. McDonough, supra, held that the crime of assault with intent to commit great bodily injury is not necessarily included in a charge of rape, and that the court need not instruct with reference to it, but in State v. Egbert, 125 Iowa, 443, 101 N. W. 191, 193, it was said: “But the indictment charged the act to have been committed ‘with force and violence,’ and the evidence tended to show violence such as to constitute a battery, and, indeed, such as might have evidenced an intent to commit great bodily injury, and the jury should have been instructed as to these possible included crimes.”

The author of the opinion in State v. Egbert, supra, also spoke for the court in State v. Novak, supra. In the later opinion it is said: “In the case of State v. Egbert, 125 Iowa, 443, 101 N. W. 191, which was a prosecution for assault with intent to commit rape, the court instructed as to the crime charged and as to simple assault, but gave no instruction as to assault and battery; and the conviction was reversed for failure to properly instruct as to included offenses with the suggestion that ‘as the evidence tended to show violence such as to constitute a battery, and indeed such as might have evidenced an intent to commit great bodily injury,’ the jury should have been instructed as to these possibly included crimes. In no other case called to our attention has there been any intimation by this court that assault with intent to commit great bodily injury is an included crime under a charge of assault with intent to commit rape. Without now deciding or even intimating that where there is evidence of an intent to inflict great bodily injury other than the injury involved in an attempt to rape, an instruction as to assault...